Marc Gilbard 2009 Settlement Trust (trus

Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd

Citation: [2015] EWHC 70 (TCC)

Background Facts

Works at 32 Shepherd Street, Mayfair, London under a JCT Standard Building Contract, Without Quantities (Revision 2, 2009).
The contract administrator issued a Final Certificate on 3 December 2013 showing a sum due from the contractor to the employer (£232,153.54 plus VAT).
OD Developments started Part 7 (court) proceedings on 20 December 2013 to challenge the Final Certificate within the contractually allowed 28-day period.
Over a year later, the contractor sought to commence adjudication proceedings on the same issues already raised in the Part 7 claim.
The employer argued that the contractor could not initiate new adjudication proceedings after the 28-day window, since the only valid challenge was already started via the Part 7 proceedings.

Key findings:
The contractor was not entitled to start a separate adjudication after the 28-day period simply because it had filed a Part 7 court claim in time.
Clause 1.9 of the JCT contract meant that the Final Certificate was conclusive evidence unless challenged within 28 days in a single set of proceedings.
The contractor’s attempt to use adjudication much later was not permitted under the contract.

Clarifications:
Once a challenge was initiated within 28 days (here, the Part 7 claim), it was the only valid route for disputing the Final Certificate.
The general statutory right to adjudicate "at any time" (under the Housing Grants, Construction and Regeneration Act 1996) does not override express contractual conclusivity provisions limiting challenges to the Final Certificate.

Outcome:
Declaration granted: the Final Certificate was not conclusive in the Part 7 claim but was conclusive for any other proceedings started after the 28 days.
No declaration granted about immediate payment of the certificate sum.

Finality of Final Certificates:
- A Final Certificate is conclusive evidence of sums due unless formally challenged in the manner and within the time allowed (here, 28 days).

Single vehicle for challenge:
- Only one set of proceedings (adjudication, arbitration, or litigation) started within the time limit can challenge a Final Certificate.
- Subsequent or parallel proceedings are barred.

Limits to statutory adjudication rights:
- Parties’ general right to adjudicate at any time is subject to express contractual terms governing conclusivity and time bars.
- This respects the finality and certainty intended by JCT contracts.

Commercial common sense interpretation:
- Supports the idea that parties would not intend to allow indefinite, sequential challenges via different dispute resolution mechanisms.
- Promotes contractual certainty and efficient resolution of disputes post-completion.